The Employee Free Choice Act (EFCA)
— also known as the Card Check Bill
(H.R. 800, S. 1041) — would make it much easier for employees to organize in the
United States. Passing it in 2009 is widely
speculated to be a top priority of organized
labor, which has amassed significant
resources to do so.
“The EFCA would amend the National
Labor Relations Act, the federal law that generally governs labor matters,” says Todd
Sarver, member of the business department,
labor and employment litigation, McDonald
Hopkins LLC.
“The legislation has been presented in 2003,
2005 and 2007, when it came close to passing.
Because this is an election year, there is an
extremely heightened sensitivity now to it
passing. The best thing companies can do
now is be proactive with their employees.
Treat them fairly and consistently. Make sure
they are educated as to all the benefits they
currently enjoy working for your company.”
Smart Business spoke to Sarver about
what the potential coming changes will
mean for employers and how they can begin
to prepare.
What are the prospects for the EFCA passing
next year?
In 2007, the House passed it by a vote of 241
to 185. After that, it got held up in a Senate
subcommittee. However, organized labor is
very committed to this legislation and continues to commit resources to getting it passed.
In fact, the AFL-CIO has committed one million members to urge representatives to pass
the legislation after the elections this year.
On the other side of the coin, the U.S.
Chamber of Commerce strongly opposes the
legislation, which it says will ‘upend decades
of settled labor law in order to give organized
labor an unfair advantage in union organizing, at the expense of both employees and
employers.’
The Chamber has countered by launching
its own Workforce Freedom Initiative and
‘card check petition.’ The issues are being
debated fiercely on both sides, but organized
labor backed candidates who supported the
EFCA for the 2008 elections and, if elected,
those representatives will be expected to
vote for the legislation.
How would it change current U.S. labor law?
Currently, there are two ways employees
can become represented. The first is by voluntary recognition. Under this scenario, a
union that has acquired more than 50 percent
of signatures in a bargaining unit can then go
to the employer and claim representation,
the employer can agree, and then the two
sides begin bargaining. The much more common scenario is that when a union obtains at
least 30 percent of signatures of the bargaining unit, it then files a petition with National
Labor Relations Board to represent those
employees. The board conducts a secret ballot election from there.
The EFCA, if it becomes law in its current
form, would create an ‘involuntary recognition’ scenario. The union would be able to be
certified the moment it collected more than
50 percent of signed authorization cards.
Once the National Labor Relations Board
recognized the union, the collective bargaining process would begin immediately. The
parties would have 90 days to reach agreement after bargaining began. After that, a
mediator would assist for 30 days and if
agreement were still not reached, a third-party arbitration panel would make decisions as to what terms and conditions would
apply during the first two years. The EFCA
also would add liquidated damages for successful claims by individuals terminated for
exercising their rights.
How would such changes affect employers?
With the way the secret ballot process
works now, there is generally a 42-day period
until an election occurs. During this time, the
employer can educate the employees as to
what organizing will mean for the company
and its employees. Under EFCA, the education process is absent and the employees will
only get the union’s perspective. In addition,
if the bargaining process is unsuccessful in
the given time frame, a third party (arbitrators) — who has no knowledge of the company — might end up making fundamental
management decisions in many areas including overtime, job postings, outsourcing, etc.
Moreover, the 90- to 120-day time frame to
bargain a first contract is wholly unreasonable — it often takes approximately a year to
achieve a first contract. As for costs, it is difficult to quantify the cost of union versus
nonunion. It is generally estimated that costs
are 20 percent greater for union companies.
Part of that is because resources are diverted
to areas such as collective bargaining, grievances, arbitration hearings, etc.
What can employers do in response to such
legislation?
In addition to doing all the right things in
regard to managing what you should be
doing anyway, write to your representatives
and senators to voice any opposition.
Internally, be extremely aggressive on several fronts. Educate all your managers and
supervisors to have firm but friendly policies
in place with respect to employee relations
and to consistently follow them.
Inconsistent administration of policies puts
you at the highest risk for organization. Make
yourself an unattractive target. The alternative could be third-party representation and,
inevitably, reduced flexibility in how you
manage your operations.
TODD SARVER is a member of the business department, labor and employment practice group, McDonald Hopkins LLC. Reach him
at (614) 458-0042 or [email protected].
